Scope

1. This procedure is designed to answer queries and resolve disputes arising from the Environment Agency, HSE and SEPA recovering costs for work carried out under COMAH, and HSE recovering costs for work in the Gas Transportation, Offshore and Nuclear sectors. This includes HSE’s recovery of costs for relevant statutory provision work in these sectors. The aim is to resolve queries and disputes promptly, transparently and fairly.

2. Annex 1 sets out guidance on raising and taking a disputed charge to the Disputes Panel. It is based on experience with the operation of the procedure to date.

Level One of the procedure - routine queries

3. Queries from duty holders about information contained in the invoice including

4. Queries should be raised by the duty holder as soon as possible after receipt of the invoice and no later than twenty working days after the invoice date. HID’s cost recovery team will forward the query to the relevant HSE Operating Division, the Environment Agency or SEPA, if necessary.

5. HSE will consider queries promptly and provide the duty holder with a response within ten working days of receipt. HSE will provide a response in writing if requested.

Level Two of the procedure - queries unresolved at
Level One

6. If the duty holder is not satisfied with the response under Level One they should send the reasons in writing to HSE at the appropriate address at paragraph 3.

within twenty workingdays of the date of the invoice in dispute; or

within ten working days of the date of the Level One response where applicable.

7. HSE will

acknowledge receipt of the duty holder's submission within five working days; and

confirm the name of the senior manager dealing with the query.

8. If the duty holder is still dissatisfied with the response at Level One but does not invoke Level Two within the specified time, HSE or the Agency itself may invoke Level Two. Where it does so, the duty holder will be informed and the procedure at paragraphs 9 and 10 followed.

9. The query will be referred to a senior manager in the directorate/division of HSE/Agency responsible for the cost recovery scheme who has not been involved in the work giving rise to the disputed charge(s) to consider, as appropriate, whether:

the work performed by HSE or the Agency was a cost recoverable function within the meaning of the regulations;

the work was done in accordance with HSE's or the Agency's relevant policies and procedures (on assessment, inspection, investigation and enforcement);

the costs charged to the duty holder reflect the costs reasonably incurred by HSE or the Agency in carrying out that function.

10. The senior manager will set out the reasons for the decision taken in writing, including whether the queried invoice is upheld, cancelled or varied. The decision will be sent to the duty holder no later than fifteen working days following receipt of the duty holder's case as at paragraph 6 above.

Payment of that part of the invoice not in dispute

11. The duty holder should pay that part of the invoice not in dispute. The duty holder should agree with the relevant HSE Directorate/Operating Division or Agency, as appropriate, the value of the disputed amount. The undisputed amount remains payable within twenty working days from the date of the invoice.

Level Three of the procedure - references to the
Disputes Panel

12. If the duty holder is not satisfied with the Level two response the matter may be referred to a 'Disputes Panel'.

13. This is comprised of

a senior official from the relevant HSE Directorate/Operating Division / Agency;

the Head of HSE’s Planning, Finance and Procurement Division; and

an external member.

The external member will be drawn from a list approved by the appropriate Charging Review Group The 'Disputes Panel' will normally be chaired by one of the members of HSE’s Senior Management Team from its policy group.

14. Senior managers from HSE (or the Agencies) who have taken part in Level One or Two determinations of a particular case will be precluded from being a member for the 'Disputes Panel' for that case.

The role of the Disputes Panel

15. The 'Disputes Panel' will consider disputes concerning the charge appearing on the invoice referred to it by duty holders. It shall determine, where applicable, whether:

the work performed by HSE or the Agency was a cost recoverable function within the meaning of the regulations;

the work was done in accordance with HSE's or the Agency's relevant policies and procedures (on assessment, inspection, investigation and enforcement);

the costs charged to the duty holder reflect the costs reasonably incurred by cost recoverable work done by HSE or the Agency in carrying out that function.

16. The duty holder should set out in writing:

under which of the bullet points at paragraph 15 the referral to the Disputes Panel falls ; and

under each, the reason(s) for disputing the charge, including the reason(s) for disputing the senior manager's decision at Level Two. The duty holder should send this request for reference to the 'Disputes Panel' for determination to HSE at the address detailed at paragraph 3.

17. That request should be received by HSE within fifteen working days of the duty holder receiving the Level Two decision. An acknowledgment of receipt will be sent within five working days.

18. The Disputes Panel Chair and the external member will be sent

all the duty holder's correspondence;

the written decision of the senior manager at Level Two; and

the response of the senior manager to the duty holder's letter to the 'Disputes Panel' (this response will also be copied to the duty holder).

The Chair and external member will discuss and decide whether the disputed matter has sufficient merit to be put before the 'Disputes Panel'.

19. If the Chair and external member conclude that there is, prima facie, no issue for determination within the scope of the 'Disputes Panel' (see para.15 above) the duty holder will be informed in writing by the Chair of the decision and the reasons why. This decision will be sent to the duty holder no later than twenty-five working days following receipt of the duty holder's request to refer the matter to the 'Disputes Panel'.

20. If the Chair and external member conclude that the duty holder has made the case for submission to the 'Disputes Panel' a meeting of the panel will be convened within thirty-five working days of receiving the duty holder’s request. (A typical agenda for the Panel hearing is at Annex 2.)

21. The duty holder shall have the right to appear before the 'Disputes Panel' in person to support his/her submission. If the duty holder intends to appear in person, she/he should notify HSE of that intention at the same time that the request for a 'Disputes Panel' hearing is made (see para. 17 above).

22. The Disputes Panel will conduct its business informally. At the conclusion of the hearing, the Disputes Panel will ask the duty holder’s representative and the HSE/Agency representatives to withdraw so that it can discuss the case. Where possible, a decision will be made on the day and the HSE/Agency and the duty holder’s representative called back into the meeting to be told the terms of that decision.

23. Where it is not possible to give a decision on the day (for example, if the Panel consider that they need to check on some facts which cannot be done at the hearing) both parties will be notified of the decision in writing.

24. The 'Disputes Panel' shall have the power to uphold or reject the complaint and confirm, vary or cancel the charge in dispute.

25. To vary or cancel a charge the 'Disputes Panel' must be of the view (on the basis of the information contained in the submissions of HSE, the Agency and the duty holder) that

the functions were not in fact cost recoverable; and/or

the charge contained in the invoice did not represent the costs reasonably incurred by the HSE/Agency for the performance of the function(s) in question (see para. 9 above on role of the 'Disputes Panel').

The decision of the 'Disputes Panel' shall be sent to the duty holder by the Chair of the panel within ten working days of the panel meeting.

26. HSE will commence debt recovery action where an invoice has not been settled within ten working days of notification that

an invoice has been disputed under the Level Three procedure and the charge in dispute has been upheld by the Disputes Panel; or

the 'Disputes Panel' Chairman and external member concluded that there is no issue for determination (see para. 19 above).

If a duty holder is dissatisfied with the response at Level Two and does not

pay the disputed invoice; or

invoke Level Three within the specified timescale,

HSE or the Agency will write to the duty holder requesting that either payment is made within ten working days or that Level Three of the procedure is invoked.

Variation of period in which action is to
be taken

27. HSE is committed to meeting the timescales set out at paragraphs 3 to 28. However, there may be occasions when that proves impossible and for the issue(s) in dispute to be considered fully and fairly (for example, a key participant may be on holiday or become ill). Where such circumstances merit it, timescales may be varied by HSE at its discretion in consultation with the duty holder.

ANNEX 1

Guidance to duty holders on taking a dispute through the queries and disputes procedures

Introduction

1. The Queries and Disputes Procedure has been in place since 1 April 2000. The notes which follow draw on experience of operating the procedure since then.

What is included in the costs?

2. Each of the cost recovery schemes seeks to recover HSE's and/or the Agencies costs in carrying out regulatory activities. These costs include, but not exclusively

time spent on site; and

work back at the office.

Using the disputes procedure

3. The Queries and Disputes Procedure was introduced to resolve queries at an early stage. There are 3 Levels. Skipping one of these Levels is not appropriate – unless agreed by the Chair of the Disputes Panel.

Confidentiality of queries and disputes information

4. Information provided by duty holders and the appropriate operational division in response to a query or dispute is handled in confidence.

General advice applying to all Levels of the Queries and Disputes Procedure

Specify the basis of your case clearly

5. Where a query first arises, a quick telephone call can often resolve it. Be specific about what it is you do not understand or are concerned about.

6. If you subsequently decide to take the matter to Levels 2 and 3, please

specify clearly the grounds on which your case is being referred; and

set out in writing the reasons for elevating your query to the next Level.

7. For Level 3 referrals, please also specify under which of the bullet points below you wish your dispute to be considered (see paragraph 16 of the Procedure):

the work performed by HSE or the Agency was a cost recoverable function within the meaning of the regulations;

the work was done in accordance with HSE's or the Agency's relevant policies and procedures (on assessment, inspection, investigation and enforcement);

the costs charged to the duty holder reflect the costs reasonably incurred by cost recoverable work done by HSE or the Agency in carrying out that function.

Be aware of the time limits in the procedure

8. There are time limits at all Levels for submitting a request and response times required by HSE and/or the Agencies. Please keep to these. The time limits are:

raise your Level 1 query no later than 20 working days after the date of the invoice;

request referral to Level 2 within 20 working days of the date of the invoice in dispute or within 10 working days of the date of the Level 1 response;

request referral to Level 3 within 15 working days of the date on which you received the Level 2 decision from the senior manager.

Do not rely on HSE's/Agencies published examples of how long a particular piece of work will take

9. These are generalised guides and are made on the basis of simplifying assumptions (e.g. that there will be no basic flaws in a safety case). For COMAH, Gas and Offshore the duration of work on each assessment of a safety case or inspection will vary from the example because of the circumstances of each case. The examples are intended to help duty holders budget for likely costs. But they are not a 'standard'.

10. A case founded solely on such differences is unlikely to succeed. HSE/the Agencies aims to update illustrative examples when more recent information becomes available to refine the information.

Raising a query at the initial stage (Level 1)

11. You should contact the charging team (see para 3 of the Guide) to discuss your query. It is for the charging team to advise HSE's Finance Unit, Bootle when a query is raised on an invoice. This will enable the Finance Unit to suspend debt recovery action.

Set out the basis of the case and the arguments supporting it clearly

12. The chair and external member are required to decide whether the case presented to them merits consideration by a full disputes panel. A clear statement of case is essential for an informed and equitable decision. Simply submitting previous correspondence about the disputed invoice(s) will not be especially helpful although letters should be attached to support the case (where these exist).

Get the right people to present your case

13. You should consider from the beginning

who is the most appropriate person to present your case; and

their availability for a panel hearing if/when one is called.

Experience suggests this is usually somebody with detailed knowledge of the substance of the safety case or inspection(s) to which the disputed invoice(s) relate(s). Someone in the accounts department, for example, is unlikely to know the detail of what occurred on a site visit which has led to the invoice being disputed.

The Disputes Panel

14. You or your representative should be prepared to present your case succinctly and to respond to questions from the Panel. Questions are usually to seek clarification so that the facts are clearly understood by the Panel. You or your representative should also be prepared to respond to the comments made by the operational division of HSE or the Agency.